The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner is currently incarcerated at the Kern Valley State Prison in Delano, California. He seeks relief under 28 U.S.C. § 2254 from his 2004 jury conviction in the Sacramento County Superior Court for first degree murder, attempted murder, second degree robbery, and attempted robbery, with special allegations of personal use and intentional discharge of a firearm causing great bodily injury. (See Docket 21, Lodged Document 4 at 2; Dkt. 15.) Petitioner is currently serving a sentence of life without the possibility of parole. (See Dkt. 21, LD 4 at 2-3.) Respondent has filed an answer to the petition, as well as relevant portions of the state court record. (See Dkts. 16, 21, and 23.) Although petitioner did not file a traverse in reply to respondent's answer, the briefing is nevertheless complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends that the Court deny the amended petition and dismiss this action with prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
Petitioner was convicted of murdering Cheryl Jones, and attempting to murder her husband, Victor Jones, after carrying out an armed robbery of the victims in the early morning hours of April 11, 2002. (See Dkt. 21, LD 4 at 2.) Petitioner's co-conspirators, Ladell Brown, Johtell Frank, and Sirrano Haywood, were also charged with these offenses. (See id.)
Victor and Cheryl first met petitioner and his co-conspirators at the Gold Rush Inn on April 9, 2002. (See id. at 3.) Over the next two days, Victor purchased crack cocaine from Brown on numerous occasions in exchange for money, as well as the use of the Jones' van. (See id.) On April 10, Brown informed Victor that his van had been stolen by someone. (See id. at 4.) Victor did not believe Brown's story about the theft and suggested that Brown return all the money Victor had paid him for cocaine. (See id. at 5.) Petitioner, Brown, and Victor discussed the problem until Brown eventually gave Victor a quarter ounce of cocaine and $20. (See id.)
Late that evening, petitioner came to the Jones' hotel room alone and asked Victor to go to the store and buy him some liquor. Victor told petitioner it would cost $10. Petitioner went back to his room, and then returned with $10 and his girlfriend, Johtell Frank. Frank offered to drive Victor to the store. (See id.) As the group left the hotel, Victor heard Brown's girlfriend, Jaynelle Frank, tell her sister, Johtell Frank, "Did you hear what was going to happen? That's messed up." (Id. at 6.) Petitioner then told Jaynelle to "go in the house." (Id.) At trial, Jaynelle Frank denied the statement attributed to her. (Id.)
Petitioner, Victor, Cheryl, and Johtell Frank left the hotel in Frank's car. Once they were on the road, Frank began answering phone calls on her cell phone while driving. (See id. at 6.) At one point, when Frank received a cell phone call, she told the caller, "After I finish with them, I'll deliver what you need." (Id.) Evidence later introduced by the prosecution at trial suggested that Frank had been speaking to Haywood while driving. Specifically, a number of calls were placed between Frank's Metro PCS cell phone and a particular SureWest cell phone, beginning at 10:52 p.m. on April 10, 2002, and ending at 2:42 a.m. on April 11, 2002. (See id. at 6-7.) The SureWest account for that phone was billed to Haywood's address, and Haywood's sister testified that she had obtained a SureWest phone for Haywood. (See id. at 7.)
Although Frank's passengers attempted to give her directions to the store, Frank kept turning the car in the opposite direction of their instructions. Victor had noticed that another vehicle was following them, and when that vehicle flashed its high beams, Frank accelerated and turned into a cul-de-sac. (See id. at 6-7.) The other vehicle followed them. (See id. at 7.) Once Frank had parked the car, she immediately got out. Petitioner then pointed a handgun at Victor and said, "Give me all your shit." (Id.) Victor handed petitioner everything he had -- a wallet with bank cards and $12 in cash, a watch, keys to his car, and a packet of Tic Tacs. (Id.) Brown then walked up to the car, pointed a rifle at Victor, and directed Victor and Cheryl to get out of the car. (See id.)
Victor pushed Cheryl into the light in front of the car, and then stood back in the dark. (Id. at 7.) He told Brown, "Man, you don't have to do this . . . I'll go to the bank and get you money." (Id.) When Victor yelled, "You're going to kill us," petitioner shot him in the left shoulder. (Id. at 8.) Victor made a dash for the door of one of the nearby houses and heard both guns fire at him, hitting him twice in the left arm. (See id. at 8.) Victor continued to run until his feet were shot out from under him, and he fell to the ground. He remembers hearing gunfire from multiple guns, and he watched Brown shoot Cheryl three or four times with his rifle as she was in the process of kneeling on the ground. Cheryl Jones died of a gunshot wound to the back inflicted by a .223 rifle. (See id.)
After Victor yelled and broke out windows in the door of a nearby house, a man's voice from inside the house announced that the police were on their way. (See id.) Brown attempted to shoot Victor with the handgun Victor had seen in the hands of petitioner. After the gun misfired twice, however, the co-conspirators fled. (See id.) Victor's lack of sleep and use of cocaine and alcohol prior to the offenses might have impaired his ability to observe and describe the events that morning. (See id.)
Petitioner was arrested later that afternoon. Sacramento County Sheriffs' Detectives Grant Stomsvik and Will Bayles informed petitioner that he was in custody and they wished to question him as part of their investigation regarding these offenses. (See Dkt. 21, 5 Clerk's Transcript on Appeal at 1201-02.) When Detective Stomsvik began to inform petitioner of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), petitioner interrupted him and asserted that he would not speak with the detectives until he had an attorney. (See id. at 1208.) The detective responded, "That's fine. What I can do is leave you a business card . . .
[a]nd either you or your lawyer can contact me. Okay. If you want -- if you change your mind and you want to tell me your side of the story, I'll be glad to hear it. Okay?" (Id.) He told petitioner they would be back with him soon, but they needed to interview a few other witnesses. (See id. at 1209.)
While petitioner waited in an interview room, police performed a gunshot residue test and took a few photographs of petitioner. (See id. at 1215-1237.) Although petitioner repeatedly attempted to ask officers questions about the status of the case and what was happening to his girlfriend, they declined to answer most of his questions. (See id.) When petitioner asked Sergeant Hill if he could speed up the process by talking to the detectives about the case, Sergeant Hill told him "No. I can't say that. I don't know. I mean, you have that right, you don't have to -- to talk to us." (Id. at 1234.) Finally, after petitioner persisted in asking questions, Sergeant Hill said, I -- I would -- if I could legally, I could explain a lot of stuff to you, okay. You did something during your interview initially which prevents us from talking to you any further about the case. Okay. You asked for an attorney. Once you do that, we can no longer talk to you about the case. Okay? The only way around that is if you solicit (sic) and change your mind or whatever and I'm not in any kind of position to address that. Okay. That will be up to the other detectives and stuff. But since you asked for the attorney, I can't talk to you about the case, Dante.
Petitioner responded that he would "rather have the detectives come back then. I'll talk to them. Well, if I talk to them, and you know what I mean, and all this stuff come back right, will I still go back -- still go to jail?" (Id. at 1237.) Sergeant Hill said, "I can't tell you that. Um, you're under arrest now for the murder like they explained to you about. What's -- what's happened if you talk to them, I don't know . . . And I can't ask them any questions about it. I'm trying to make that perfectly clear, you asked for an attorney and I am not in a position to talk to you about the case." (Id.) Sergeant Hill then left the room to get petitioner a Pepsi to drink. As soon as he returned with the Pepsi, petitioner repeated his request to speak with the detectives. Petitioner explained, "I'm just trying to get this shit done possible -- quick." (Id. at 1238.) Sergeant Hill then agreed to tell the detectives petitioner wanted to talk to them.
Approximately twenty-five minutes later, Detectives Stomsvik and Bayles returned to the interview room where petitioner was sitting. (See id. at 1238.) Petitioner told the detectives, "You can talk to me, man." (Id. at 1239.) Before questioning petitioner, Detective Stomsvik asked petitioner again, "You -- you notified my boss that you want to talk to me now. Do you want to talk to me now?" Petitioner answered, "Yeah." (Id. at 1239-40.) Detective Stomsvik then read petitioner his Miranda rights. (See id. at 1240.) After being fully informed of his rights, petitioner again agreed to speak with the detectives about the case. (See id.)
The detectives then interviewed petitioner for several hours in a session that was video recorded. (See id. at 1240-1459.) During the interview, petitioner admitted that he had helped plan the robbery of Victor and Cheryl Jones. (See id. at 1422-1441.) He later asserted, however, that he had lied to the detectives throughout the interview because he did not trust them and "I'm going to jail anyway. . . ." (Id. at 1452; see id. at 1450-59.)
The district attorney charged petitioner, Brown, Frank, and Haywood with the crimes committed against Victor and Cheryl Jones. (See id., LD 4 at 1.) Before trial, in September 2003, Haywood pled guilty to voluntary manslaughter and attempted murder, and admitted he was an armed principal in the shootings. (See id. at 1.) The remaining three co-defendants were tried in a single criminal proceeding before three separate juries. (See id.) Because Haywood had not yet been sentenced at the time of the trial, when the defense called him as a witness Haywood invoked the Fifth Amendment and refused to answer any questions regarding the offenses. (See id., 6 RT at 1281-84.)
In addition, petitioner moved during trial to exclude evidence of his interview with the detectives. (Id., 2 Reporter's Transcript on Appeal at 70-76.) The trial court found that "there is no question that Mr. Alexander clearly invoked" his right to counsel when the detectives first approached him regarding the offenses. (Id. at 81.) Contrary to petitioner's contention that the officers who spoke with petitioner and performed the drug residue test on him later "badgered" or coerced him into waiving this right, however, the trial court found that "the officers in fact bent over backwards to make it clear to Mr. Alexander that they could not talk to him about what he was being held for because he had invoked his right to have a lawyer present. Over and over again Mr. Alexander keeps trying to keep the conversation going by asking questions." (Id.) As a result, the trial court concluded that the portion of the detectives' interview which took place after petitioner had been fully advised of his Miranda rights would be admissible at trial. (See id. at 82-83.) Pursuant to the trial court's ruling, the prosecution played an edited version of the videotaped interview for petitioner's jury at trial. (See id., 6 RT at 1242-50; see id., LD 4 at 9.)
The jury found petitioner guilty of first degree murder, attempted murder, second degree robbery, and attempted robbery, and found true all the special allegations and circumstances alleged in the amended information. (See id. at 2.) Specifically, the charges included allegations of personal use and intentional discharge of a firearm causing great bodily injury. (See id.) The trial court sentenced petitioner to a determinate term of twenty-seven years, ...